Amendment was futile

Judge Fogel published his ruling in the two Holomaxx cases today.

Defendant’s motion to dismiss having been granted,
IT IS ORDERED AND ADJUDGED that Plaintiff’s complaint be dismissed without leave to amend and that the action be dismissed with prejudice.

The full text of the rulings are available (Yahoo order, Microsoft order).
There’s nothing very surprising here. The ISPs have immunity under the CDA and Holomaxx presented nothing that suggested the immunity should be lifted. In fact, during the hearing the judge specifically addressed this issue with Holomaxx.

The judge asked the plaintiff’s attorney for his “absolute best argument” as to the bad faith exhibited by the defendants.
The plaintiff responded that they are a competitor who is being stonewalled by the defendants. That their email is not spam (as it is CAN SPAM compliant) and it is wanted email. The defendants are not following the “objective industry standard” as defined by MAAWG.
The judge responded clarifying that the plaintiff really claimed he didn’t need to present any evidence. “Yes.” Judge Fogel mentioned the Towmbly standard which says that a plaintiff must have enough facts to make their allegations plausible, not just possible. the hearing

In his ruling, the Judge addresses the 230 Immunity question.

Section 230(c)(2)(A) of the CDA grants immunity to interactive computer service providers that act in good faith to “restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” 47 U.S.C. § 230(c)(2). This Court and others consistently have held that “§ 230 provides a ‘robust’ immunity, Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003), and that all doubts ‘must be resolved in favor of immunity.’” Goddard v. Google, Inc., 2008 WL 5245490 at *2 (N.D. Cal 2008) (quoting Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157, 1174 (9th Cir. 28 2008)).
[…] While Yahoo! delivered at least some emails prior to June 2010, that fact alone is not sufficient to support a reasonable inference that Yahoo! acted in bad faith when it decided to block Holomaxx’s emails. Holomaxx fails to identify an industry standard that Yahoo! allegedly failed to follow. While the Messaging Anti-Abuse Working Group (“MAAWG”) promulgates certain guidelines, the FAC contains no facts supporting Holomaxx’s claim that the guidelines  amount to an industry standard. To permit Holomaxx to proceed solely on the basis of a conclusory allegation that Yahoo! acted in bad faith essentially would rewrite the CDA.  Accordingly, the Court concludes that Yahoo! is entitled to immunity from Holomaxx’s claims for computer fraud, intentional interference with contract, intentional interference with prospective business advantage, and wiretapping/eavesdropping.

And with that, another attempt to use the court to force ISPs to deliver unsolicited and unwanted email fails.

Uptick in botnet spam
Robust protection under the CDA

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Email and law in the news

A couple things related to the intersection of email and law happened recently.
The 6th circuit court ruled that the government must have a search warrant before accessing email. The published opinion is interesting reading, not just because of the courts ruling on the law but also because of the defendant. Berkeley Premium Nutraceuticals toyed with spamming to advertise their product as a brief search of public reporting sites shows. The extent and effort they went to in order to stay below the thresholds for losing their merchant accounts is reminiscent of the effort some mailers go through to get mail through ISP filters.
The other bit of interesting reading is the Microsoft motion to dismiss the case brought against them by Holomaxx. It is a relatively short brief (33 pages) and 3 of those pages are simply a listing of the relevant cases demonstrating ISPs are allowed to filter mail as they see fit. 2 more pages are dedicated to listing the relevant Federal and State statutes. I strongly encourage anyone considering suing any large ISP to to read this pleading. These lawyers understand email law inside and out and they are not going to mess around. They also have both statute and case law on their side. They point this out before the end of page 1:

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Holomaxx v. MSFT and Yahoo

I mentioned way back in January that Yahoo had filed a motion to dismiss the case against Holomaxx. Microsoft filed a motion to dismiss around that time, although I didn’t mention it here.
And, of course, Holomaxx filed a motion in opposition in both the Microsoft case and the Yahoo case. Nothing terribly interesting here, about what you’d expect to read.
On March 11 the judge ruled on both motions to dismiss and in both cases ruled that the case was dismissed.  He did, however, give leave for the complaints to be amended in the future.
As I expected the Judge agreed that MSFT and Yahoo have protection under the CDA. First, the court made it clear that providers are allowed wide leeway in determining what is objectionable to their customers.

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Holomaxx dismisses part of lawsuit

Ken announced yesterday that Holomaxx dropped their suits against Ironport and ReturnPath. Suits against Yahoo and Hotmail are still active.
In the Yahoo case, there is a case management meeting on January 14th.
In the Microsoft case, a response the complaint is due by December 17th.
I’m not quite sure what happened to prompt this change, but I think it makes it even more unlikely that the case will be successful. The courts have repeatedly ruled in favor of ISPs in these kinds of cases.
EDIT: I’d link to Ken’s article, but I appear to have closed that tab and I can’t find it on his website. I’ll add it as soon as I do.
EDIT: Ken’s announcement

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